As he waded about ten feet off shore, Will Thomas’s foot hit something round. “Hey, we have a human head,” he joked. Thinking it was a rock, he pulled it out of the water. “All of a sudden, I saw teeth,” Thomas said. It was a skull. Thomas, after watching the hydroplane race, went back and retrieved the skull and took it to the Kennewick Police. They led police back to the site, where more bones were found.

Initial Investigation

The following day, the police abandoned the investigation when forensic anthropologist Jim Chatters of Richland, Washington told the police the remains looked old, possibly 100 or 150 years or more. The skull had what Chatters identified as “Caucasoid” features --it did not look like a Native American skull-- and so the anthropolgist initially hypothesized that the boys had found the bones of one of the original homesteaders. Chatters obtained a permit, pursuant to the Archeological Resources Protection Act (“ARPA”), to investigate the site on July 30, 1996.

Chatters soon discovered a 2-inch-long stone projectile point lodged in the skeleton's right hip, of a type used 5,000 to 9,000 years ago.

Around August 28, 1996, Chatters received carbon dating data which supported a date of death between 8340 and 9200 years before the present, and held a press conference regarding the find.

Well preserved Paleo-Indian remains are rare. Most human remains this old found in the Western Hemisphere are mere fragments. Chatters had recovered over 90% of Kennwick Man’s skeleton, making it one of the most complete early Holocene human skeletons in the Americas. Arrangements were made to transport the remains to the Smithsonian Institution.

The Smithsonian, incidently, is the only museum in the United States which is not subject to mandatory federal laws requiring the “repatriation” of Native American human remains to existing tribal government entities.

Kennewick Man Seized By Indians and Bureaucrats

The publicity attracted the attention of local Indian tribes, including the Umatilla, Yakima, Nez Perce, Colville and Wanapum Tribes. Tribal officials, who were not anthropologists (and, in fact, has not even seen the remains) pronounced their opinion that the remains were “definitely” Native American. Bureaucrats from the Army Corps of Engineers, which had jurisdiction because the remains were found on Corps' dam property, agreed.

On September 9, 1996, the Army Corps of Engineers seized the remains and announced their plans to turn them over to local Indians, pursuant to 25 U.S.C. § 3001 et seq., the Native American Graves Protection and Repatriation Act of 1990, known by the acronym “NAGPRA”. A few days later, the Corps of Engineers announced it was going to let the tribes decide to what to do with the remains. The Tribes demanded that scientific investigation (specifically, DNA testing of the sample that had been carbon dated) cease immeditately.

“We already know our history. It is passed on to us through our elders and through our religious practices.” Statement of Confederated Tribes of the Umatilla, quoted in “Opinion and Order” dated August 30, 2002, by United States Magistrate Judge John Jelderks, at 5. “From our oral histories, we know that our people have been part of this land since the beginning of time. We do not believe that our people migrated here from another continent, as the scientists do.” Id.

On October 3, 1996, the Corps announced an official decision to turn the remains over to the Umatilla tribe, to be buried at an undisclosed location.

Lawsuit Begins

On October 17, 1996, eight anthropologists, including three from the Smithsonian, filed a lawsuit in the United States District Court for the District of Oregon: Bonnichsen v. United States (U.S.D.C. Dist. Or. No. 96-1481-JE). The case was assigned to a magistrate judge, who held a hearing on Plaintiffs motion for temporary restraining order on October 23, 1996. Defendants, various United States government entities including the Corps of Engineers and the Department of the Interior, avoided an injunction by agreeing to give the Plaintiffs 14 days notice before any disposition of the remains (enough time to seek a temporary restraining order). A protracted legal battle ensued. The first phase concluded with an order from Judge Jelderks, directing the Corps to reevalaute the issues applying the appropriate legal stanards, and to store the remains “in a manner that preserves their scientific value”. Bonnischen v. United States, 969 F. Supp. 628 (D.Or. 1997).

By the time Judge Jelderks entered this order, the Corps had already lost the femur bones (discovered five years later in the county coroner’s evidence locker) . Then, “under circumstances which have never beeen satisfactorily explained” (August 30, 2002 “Opinion and Order” at 8) a box containing a small quantity of bones from the Kennewick skeleton was removed by Tribal representatives from the Corps’ allegedly “secure” storage and secretly buried. The Corps allowed Tribal representatives to visit the remains and conduct religious ceremonies, allowing them to be handled, covered with contemporary plant material and smoke from cedar or sage, which compromised later DNA analysis.

In April 1998, the Army Corps of Engineers buried the discovery site with two (2) millions pounds of rubble and dirt, delivered by helicopter at a cost of over $150,000 to the United States’ taxpayers, and planted 3700 fast-growing willow, dogwood and cottonwood trees.

The reason for the Corps’ haste was a bill, pending in the United States Congress, to amend NAGPRA and prohibit the Corps’ destruction of the site.

Further Study

Two (2) years after the Magistrate Judge had ordered them to commence study, and over the continuing objections of the Tribal Claimants, the government finally took a look at the remains in their exclusive possession. Review confirmed Chatters findings as to age and also morphology, though the government’s experts hastened to add that the morphology of the remains --measurements of skull, teeth and bones-- was unlike any modern-day population, Indian or Caucasian, that is, “all late Holocene human groups”. On the other hand, Kennewick Man’s traits are not dissimilar from other remains of similar age found in North America.

The government also assembled reports on the projectile point found embedded in the bones, pre-historic habitation in the Columbia River plateau, linguistic studies and oral histories of the claimant tribes.

Procedural “Irregularities”

The Magistrate Judge very early on ordered the government to answer a series of questions, including what has turned out to be the question which decides whether NAGPRA applies (and thus whether repatriation need even be considered): whether the remains are “Native American” as that term is defined in NAGPRA. The lead federal agency, the Department of the Interior, would, under well established procedures, act as a sort of “judge”, and come up with an impartial decision based on the evidence.

While executive agencies are not expected to preside over full blown litigation or follow standard courtroom procedures, basic standards of fairness should apply. Instead, the Department of the Interior, under the guise of “consulting” with the Indian Tribes, in effect called them in secretly, told them what they had to say, and gave them copies of all the reports of the experts. The Plaintiffs and their counsel, on the other hand, were not consulted at all and given access to nothing. It would be as if, in a criminal trial, the judge met with the prosecutors and the witnesses and told them what to say, held the trial without the accused present, and then asked the accused if they had any last words.

The failure to preserve the evidence, and the mockery of due process, clearly influenced the magistrate’s decision. However, in the end it was based on a purely legal question: how to define “Native American” under NAGPRA.

“Native American”

The term was problematic before the Kennewick Man dispute because it applies to indigneous people throughout the territory of the United States, including the States of Hawaii and Alaska, where the natives do not consider themselves “American”. NAGPRA nonetheless defines “Native American” as “of, or relating to, a tribe, people or culture that is indigenous to the United States.” 25 USC § 3001 (9).

Department of Interior issued regulations interpreting this definition to mean all pre-Columbian artifacts and remains found in the United States (on Indian or federally-controlled land) whether or not they could be shown to be culturally affiliated, or biologically related, to present day Indian Tribes.

The Court rejected this interpretation, noting the use of the present tense in the statutory definition as well as other key phrases in NAGPRA. August 30, 2002 “Opinion and Order” at 27. Notwithstanding the “oral history” of the Tribes to the contrary, the Court noted in passing various theories as to how human beings came to inhabit the Americas. This is in stark contrast to some previous NAGPRA decisions where religious beliefs were accepted by federal judges as “facts”. Finally, the Court found there was no evidence in the record to show that the remains of Kennewick Man were related to any existing Tribal Claimant.

Here the government’s cavalier attitude towards the evidence, and in particular their burial of the discovery site under tons of rubble, came back to bite them. The government, in essence, destroyed whatever evidence of a link to present day tribes there might have been. The magistrate judge devotes the bulk of his August 30, 2002 “Opinion and Order” to demolishing the Department of the Interior's conclusion that Kennewick Man’s remains are “culturally affiliated” with the Tribal Claimants. The available evidence simply does not establish that present day tribes have been around the Columbia plateau for 9,000 years.

Legal Prognosis

The matter is going up on appeal to the Ninth Circuit Court of Appeals. Congress may amend NAGPRA to clarify the issues in this case before the Ninth Circuit has a chance to consider them fully, so it is very difficult to predict whether Kennewick Man will ultimately be reburied or go to the Smithsonian Institute.

UPDATE

A three judge panel of the Ninth Circuit Court of Appeals affirmed the district court, holding that NAGPRA requires that human remains bear some significant relationship to a presently existing tribe or people, or culture to be considered Native American, and overruled the Department of Interior's regulations which effectively deemed "Native American" all ancient human remains found in the United States.

Perhaps even more significant was the Court's rejection of the Interior Department's conclusion that the remains bore some relationship with existing Indian tribes in Washington State. That conclusion was entirely unsupported by scientific evidence, but rested only on the "oral history" or traditions of the Indians, which in essence assert that they have been in the Columbia Plateau region since time immemorial. The government believed that under NAGPRA, respect for minority religious or cultural viewpoints must always trump the scientific and legal standards of the dominant majority culture. The Court acknowledged the Indians' tales did suggest that they had been there a while, but found there was no evidence to support the conclusion that Kennewick Man was "affiliated" with currently existing tribes. Once again, the destruction of the site, and any evidence that might have been there, proved to be a major mistake.

In the Ninth Circuit, the case is entitled Bonnischen v. United States of America, No. 02-35994, and it was filed on Feburary 4, 2004. The opinion was authored by Judge Ronald M. Gould.